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[Federal Register Volume 76, Number 129 (Wednesday, July 6, 2011)]
[Proposed Rules]
[Pages 39343-39350]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16901]

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DEPARTMENT OF EDUCATION

34 CFR Subtitles A and B

[Docket ID ED-2011-OGC-0004]

Reducing Regulatory Burden; Retrospective Review Under E.O. 13563

AGENCY: Department of Education.

ACTION: Request for information.

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SUMMARY: The U.S. Department of Education (the Department) requests 
comments on its preliminary plan for the retrospective analysis of its 
existing regulations as part of its implementation of Executive Order 
13563 ``Improving Regulation and Regulatory Review.'' The purpose of 
this preliminary plan is to make the Department's regulatory program 
more effective and less burdensome in achieving the Department's 
regulatory objectives. The plan, once final, will establish the 
Department's policy for conducting thorough and meaningful 
retrospective reviews and analyses of its regulations on an ongoing 
basis. The Department requests public comment on this preliminary plan 
to help the Department review its significant existing regulations in 
order to determine whether any of these regulations should be modified, 
streamlined, expanded, or repealed.
    In addition, pursuant to the ``President's Memorandum on 
Administrative Flexibility, Lower Costs, and Better Results for State, 
Local, and Tribal Governments,'' we request comments (including, when 
applicable, from students, their parents, and consumer and taxpayer 
representatives) on possible administrative flexibility that the 
Department may be able to provide to State, local, and tribal 
governments.

DATES: We must receive your comments on or before July 25, 2011.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID--Docket ID ED-2011-OGC-0004--
at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments. Information on using Regulations.gov, including 
instructions for finding a notice, submitting a comment, finding a 
comment, and signing up for e-mail alerts, is available

[[Page 39344]]

on the site under ``How to Use Regulations.gov'' in the Help section.
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments, address them to Elizabeth McFadden, 
Deputy General Counsel for Ethics, Legislative Counsel, and Regulatory 
Services, Office of the General Counsel, U.S. Department of Education, 
400 Maryland Avenue, SW., room 6E300, Washington, DC 20202-2110.

    Privacy Note:  The Department's policy for comments received 
from members of the public (including those comments submitted by 
mail, commercial delivery, or hand delivery) is to make these 
submissions available for public viewing in their entirety on the 
Federal eRulemaking Portal at http://www.regulations.gov. Therefore, 
commenters should be careful to include in their comments only 
information that they wish to make publicly available on the 
Internet.

FOR FURTHER INFORMATION CONTACT: Elizabeth McFadden, Deputy General 
Counsel for Ethics, Legislative Counsel, and Regulatory Services, 
Office of the General Counsel, U.S. Department of Education, 400 
Maryland Avenue, SW., Washington, DC 20202-2110. Telephone: 202-401-
6000. You may also e-mail your questions to: Reg-Review@ed.gov.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) by contacting the person listed under this section.
    To view Executive Order 13563 go to: http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf.
    To view the ``President's Memorandum on Administrative Flexibility, 
Lower Costs, and Better Results for State, Local, and Tribal 
Governments,'' go to: http://www.whitehouse.gov/the-press-office/2011/02/28/presidential-memorandum-administrative-flexibility.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding the preliminary plan, 
which is published in its entirety as an Appendix to this notice, and 
possible administrative flexibility that the Department may be able to 
provide to State, local, and tribal governments. Please let us know of 
any further opportunities we should take to improve any of our 
regulations by modifying, streamlining, expanding, or repealing them or 
to provide additional flexibility to entities that receive Department 
funds.
    During and after the comment period, you may inspect all public 
comments on this notice by accessing Regulations.gov. You may also 
inspect the comments, in person, in room 6E300, 400 Maryland Avenue, 
SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., 
Eastern time, Monday through Friday of each week except Federal 
holidays. If you want to schedule an appointment to review the comments 
in person, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

Assistance to Individuals With Disabilities in Reviewing the Public 
Docket

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
docket for this notice. If you want to schedule an appointment for this 
type of aid, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

Background

Retrospective Review

    On January 18, 2011, President Obama issued Executive Order 13563 
(published in the Federal Register on January 21, 2011 (76 FR 3821)), 
which directs agencies to conduct a retrospective analysis of existing 
significant regulations and to modify, streamline, expand, or repeal 
those regulations that are outmoded, ineffective, insufficient, or 
excessively burdensome. Executive Order 13563 supplements and reaffirms 
the principles of regulatory review enunciated in Executive Order 
12866, ``Regulatory Planning and Review'' (published in the Federal 
Register on November 4, 1993 (58 FR 51735)). Some of these principles 
are that our regulatory system must: (1) Promote economic growth, 
innovation, competitiveness, and job creation; (2) be based on the best 
available science; (3) allow for meaningful public participation; (4) 
consider costs and benefits; (5) promote predictability; and (6) ensure 
that regulations are accessible and easy to understand. In order to 
advance these principles, Executive Order 13563 requires agencies to 
develop and implement a plan for periodically reviewing their existing 
significant regulations.
    Section 6(b) of Executive Order 13563 directs each agency to 
develop and submit to the Office of Management and Budget's (OMB) 
Office of Information and Regulatory Affairs a preliminary plan for 
reviewing existing significant regulations in order to determine 
whether any such regulations should be modified, streamlined, expanded, 
or repealed.
    The Department developed a preliminary plan and submitted it to OMB 
on May 18, 2011. The preliminary plan addresses our plan to review 
existing significant regulations (and significant guidance documents 
and existing information collections--to the extent they are associated 
with existing regulations), and priorities, requirements, definitions, 
and selection criteria governing discretionary grant programs that are 
established through rulemaking but that are not codified in the Code of 
Federal Regulations. More specifically, the plan (1) lists the factors 
and processes the Department proposes to use to set priorities for the 
retrospective review of its regulations; (2) identifies an initial list 
of existing regulations that are candidates for review; (3) explains 
how the Department intends to coordinate with other Federal agencies 
that have overlapping jurisdiction or similar interests; and (4) sets 
forth the proposed components of its retrospective cost-benefit 
analysis. Through this notice, we request public comment on these 
particular elements of the preliminary plan as well as all other 
aspects of the plan. We will consider the feedback we receive through 
this process when formulating a final retrospective review plan and 
establishing processes for ongoing review at the Department.
    The preliminary plan is included in the Appendix to this notice and 
is also available on the Department's Open Government Web site at 
http://www.ed.gov/open.

Administrative Flexibility, Lower Costs, and Better Results for State, 
Local, and Tribal Governments

    On February 28, 2011, the President issued a memorandum to Federal 
agencies entitled ``Administrative Flexibility, Lower Costs, and Better 
Results for State, Local, and Tribal Governments.'' This memorandum 
requires Federal agencies to report to OMB on actions taken and plans 
to offer greater flexibility, where it will yield improved outcomes at 
lower cost, in Federal programs administered by State, local, and 
tribal governments.
    To implement the President's directive in the memorandum, the 
Department is working to identify administrative, regulatory, and 
legislative barriers that currently prevent States, localities, and 
tribes

[[Page 39345]]

from efficiently and effectively using Federal funds to achieve program 
objectives. We are in the process of identifying a number of high-
impact areas in which efforts to increase flexibility and reduce costs 
could have broad implications for a wide set of stakeholders. Potential 
actions under consideration include offering additional waiver options 
that would provide regulatory relief on key provisions, simplifying 
redundant or overlapping data requirements, providing a better and more 
transparent process for considering State requests to waive 
requirements to maintain fiscal effort, and improving interagency 
collaboration in such areas as early learning, workforce development, 
and place-based initiatives such as Promise Neighborhoods, which may 
offer opportunities for achieving additional cross-agency efficiencies.
    We would appreciate responses to the following questions:
    (1) What administrative, regulatory, and statutory requirements 
could be changed to help reduce costs and unnecessary burdens, spur 
innovation, and improve student or program outcomes?
    (2) What regulatory requirements should the Department consider 
waiving, subject to statutory waiver authority?
    (3) Should the Department streamline the application and approval 
process for waivers and, if so, how?
    (4) Where could the Department reduce current reporting 
requirements that are not necessary or useful in measuring program 
performance, facilitating data-driven program improvements, or ensuring 
the proper use of taxpayer dollars? Where are there opportunities to 
consolidate or streamline data collection or submission requirements?
    (5) How can the Department streamline or modify the procedures that 
we use for processing requests for waivers of maintenance-of-effort 
(MOE) requirements to make them more transparent and uniform across 
programs with MOE requirements and reduce unnecessary reporting for 
States?
    (6) What cross-agency flexibility or alignment is needed to allow 
States, local, and tribal governments to improve their early learning, 
workforce, and place-based efforts? (This could include consideration 
of how we might provide additional flexibility in such areas as 
performance measurement, application requirements, or uses of funds, or 
might encourage cross-agency funding opportunities, etc.)
    (7) What flexibility can the Department offer to help facilitate 
collaboration at and across the State, local, and tribal levels?
    (8) Where could increased flexibility drive the most improvements 
in program and student outcomes?
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: http://www.gpo.gov/fdsys. At this site you can view this document, 
as well as all other documents of this Department published in the 
Federal Register, in text or Adobe Portable Document Format (PDF). To 
use PDF you must have Adobe Acrobat Reader, which is available free at 
the site. You may also access documents of the Department published in 
the Federal Register by using the article search feature at: http://www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

    Dated: June 29, 2011.
Arne Duncan,
Secretary of Education.

United States Department of Education

Preliminary Plan for Retrospective Analysis of Existing Rules

May 18, 2011.

I. Executive Summary of Preliminary Plan and Compliance With Executive 
Order 13563

    Executive Order 13563 (Executive Order) recognizes the importance 
of maintaining a consistent culture of retrospective review and 
analysis throughout the executive branch. Determining the costs and 
benefits of a regulation before it is implemented is a challenging task 
and it often cannot be accomplished with perfect precision. The U.S. 
Department of Education's (ED) plan is designed to create a defined 
policy, method, and schedule for identifying certain significant rules 
that may be outmoded, ineffective, insufficient, or excessively 
burdensome. The review processes described in this plan are intended to 
facilitate the identification of regulations that warrant repeal or 
modification, or the strengthening, complementing, or modernizing of 
regulations, where necessary or appropriate.

II. Scope of Plan

    a. Background: ED supports States, local communities, institutions 
of higher education, and others in improving education nationwide and 
in helping to ensure that all Americans receive a quality education. We 
provide leadership and financial assistance pertaining to education at 
all levels to a wide range of stakeholders and individuals, including 
State educational agencies, early childhood programs, elementary and 
secondary schools, institutions of higher education, career and 
technical schools, nonprofit organizations, members of the public, and 
many others. These efforts are helping to ensure that all students will 
be ready for college and careers, and that all K-12 students have an 
open path towards postsecondary education. We also vigorously monitor 
and enforce the implementation of Federal civil rights laws in 
education programs and activities that receive Federal financial 
assistance, and support innovation, research, evaluation, and 
dissemination of findings to improve the quality of education. Overall, 
the programs we administer affect nearly every American during his or 
her life.
    In developing and implementing regulations, guidance, technical 
assistance, and approaches to compliance related to our programs, we 
are guided by the following three principles. First, we are committed 
to working closely with affected persons and groups. Specifically, we 
work with a broad range of interested parties and the general public, 
including parents, students, and educators; State, local, and tribal 
governments; and neighborhood groups, schools, colleges, rehabilitation 
service providers, professional associations, advocacy organizations, 
businesses, and labor organizations.
    Secondly, we are committed to ensuring our regulations are concise 
and minimize burden to the greatest extent possible while still helping 
ensure the achievement of program outcomes. And finally, we continue to 
seek greater and more useful public participation in our rulemaking 
activities through the use of transparent and interactive rulemaking 
procedures and new technologies. If we determine that it is necessary 
to develop regulations, we seek public participation at all key stages 
in the rulemaking process.
    These three guiding principles will be incorporated fully into our 
retrospective analyses of ED regulations.
    b. List all subagencies within the Department that are included in 
this plan:
    The following offices within ED are included in this plan:

Office of the Secretary
Office of the Deputy Secretary

[[Page 39346]]

Office of the Under Secretary
Office of the Chief Financial Officer
Office of the Chief Information Officer
Office of Management
Office of Elementary and Secondary Education
Office of Postsecondary Education
Office of Federal Student Aid
Office of English Language Acquisition
Office of Special Education and Rehabilitative Services, including the 
Office of Special Education Programs, the National Institute on 
Disability and Rehabilitation Research, and the Rehabilitation Services 
Administration
Office of Inspector General
Office of Innovation and Improvement
Office of Safe and Drug-Free Schools
Office of Vocational and Adult Education
Office of the General Counsel
Office for Civil Rights
Office of Planning, Evaluation, and Policy Development

    c. The following types of documents are covered under this plan:
 Existing regulations
 Significant guidance documents (to the extent they are 
associated with existing regulations)
 Existing information collections (to the extent they are 
associated with existing regulations)
 Priorities, requirements, definitions, and selection criteria 
governing discretionary grant programs that are established through 
rulemaking but are not codified in the Code of Federal Regulations \1\
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    \1\ When referring to the review of regulations throughout this 
plan, that review includes review of significant guidance documents 
and information collections associated with the regulations under 
review.
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III. Public Access and Participation

    a. Did the agency publish a notice in the Federal Register seeking 
public input on developing plans? If yes, please provide a link to the 
notice.
    No. However, ED will soon be publishing a notice requesting public 
comment on our preliminary plan in the Federal Register and posting it 
on our Open Government Web site. Through these notices, and pursuant to 
the President's Memorandum on Administrative Flexibility, Lower Costs, 
and Better Results for State, Local, and Tribal Governments, ED will 
solicit feedback (including, when applicable, from students, their 
parents, and consumer and taxpayer representatives) on possible 
administrative flexibilities that ED may be able to provide to State, 
local, and tribal governments; non-profit organizations; institutions 
of higher education; community-based organizations; and other entities 
that receive funds under our programs. ED believes it will receive more 
meaningful feedback from the public and stakeholders by providing a 
specific draft plan for retrospective review and by including in that 
notice questions on possible administrative flexibilities that may be 
accomplished through regulatory revisions as well as through other 
methods. ED also intends to solicit this feedback on an ongoing basis 
through meetings with stakeholders.
    b. Brief summary of public comments to notice seeking input: N/A.
    c. Did the agency reach out to the public in addition to the public 
notice? N/A.

IV. Current Agency Efforts Already Underway Independent of E.O. 13563

    a. Summary of pre-existing agency efforts (independent of E.O. 
13563) to conduct retrospective analysis of existing rules:
    ED has long been committed to ensuring that its regulations are 
reviewed and updated as necessary and appropriate. As outlined each 
year in ED's Regulatory Plan,\2\ and through consistent application of 
the key principles outlined below, we have eliminated unnecessary 
regulations and identified situations in which major programs could be 
implemented without regulations or with limited regulatory action.
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    \2\ See U.S. Department of Education, Statement of Regulatory 
Priorities, 75 FR 79509 (Dec. 20, 2010).
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    In deciding when to regulate, we consider:
     Whether regulations are essential to promote quality and 
equality of opportunity in education;
     Whether a demonstrated problem can be resolved without 
regulation;
     Whether regulations are necessary in order to provide a 
legally binding interpretation that resolves ambiguity;
     Whether entities or situations subject to regulation are 
so diverse that a uniform approach through regulation would do more 
harm than good; and
     Whether regulations are needed to protect the Federal 
interest; that is, to ensure that Federal funds are used for their 
intended purpose and to eliminate fraud, waste, and abuse.
    In deciding how to regulate, we are mindful of the following 
principles:
     Regulate no more than necessary;
     Minimize burden to the extent possible, and promote 
multiple approaches to meeting statutory requirements when possible;
     Encourage coordination of federally funded activities with 
State and local reform activities;
     Ensure that the benefits justify the costs of regulating;
     To the extent possible, establish performance objectives 
rather than specify compliance behavior; and
     Encourage flexibility, to the extent possible, so 
institutional forces and incentives achieve desired results.
    Additionally, we routinely review the priorities and requirements 
governing our discretionary grant competitions following the completion 
of those competitions to determine whether changes should be made for 
future competitions.
    Over the past two years, and operating under these principles, we 
have engaged in retrospective review of several key regulations that 
required updating to reflect changes in the authorizing statute, 
Administration priorities, or ED policies. We also began the process of 
developing a broader plan for a retrospective review of our 
regulations. Some examples of those efforts are as follows:
     ED recently reviewed and revised its Freedom of 
Information Act (FOIA) regulations to implement changes made to FOIA in 
recent years. These amended regulations also took into account public 
guidance regarding FOIA issued by the White House and the Department of 
Justice. The revised regulations articulate more clearly to the public 
how ED processes FOIA requests for publicly available records, thereby 
promoting equality of opportunity and decreasing ambiguity.
     In 2009 and 2010, ED reviewed and subsequently modified, 
following notice and public comment, its Education Department 
Acquisition Regulations (EDAR) to bring those regulations into 
alignment with changes to the Federal Acquisition Regulations. These 
modifications will increase the efficiency with which ED manages 
contracts.
     Upon reauthorization of the Federal TRIO discretionary 
grant programs in the Higher Education Opportunity Act of 2008, ED 
reviewed its existing TRIO regulations and conducted negotiated 
rulemaking in 2009 and 2010 to comprehensively update and amend the 
regulations governing these programs. These amended regulations will 
help ensure that Federal funds are used for their intended purpose and 
resolve ambiguity for potential applicants, thereby ensuring that all 
eligible applicants have an opportunity to participate in the program.
     Over the past two years, ED reviewed and revised a number 
of program integrity regulatory provisions associated with the Federal 
student aid programs authorized under Title IV of

[[Page 39347]]

the Higher Education Act of 1965, as amended (HEA). ED conducted this 
review in recognition of the fact that the student financial aid 
programs have grown dramatically in recent years, placing significantly 
more taxpayer funding at risk. In response to this dramatic growth in 
aid, we tightened our regulatory requirements in some areas (e.g., 
misrepresentation, State authorization, credit hours, and incentive 
compensation) while relaxing them in others (e.g., verification). This 
balanced approach, combined with our work on the ``gainful employment'' 
issue, will allow for additional growth in the aid programs while 
ensuring that we have appropriate safeguards in place to protect 
taxpayer funds.
     In January 2011, ED successfully completed its 2010 Burden 
Reduction Initiative to reduce Free Application for Federal Student Aid 
(FAFSA) burden by at least five percent. In fact, ED decreased the 
FAFSA burden by 5,405,813 hours, or more than 14 percent. As part of 
accomplishing this impressive burden reduction, ED also realized the 
other goals included as part of the initiative: (a) Consolidation of 
the FAFSA and SAR into one ICR to better reflect that the two are part 
of one business process--applying for Federal student financial aid; 
and (b) Simplifying the application experience for student aid 
applicants by shortening completion times, primarily through the use of 
improved technology such as ``skip and assumption logic.''
     In preparation for conducting a retrospective review of 
ED's regulations, we have reviewed plans and strategies used by other 
agencies, journal articles, and Administrative Conference of the United 
States (ACUS) Recommendation 95-3, ``Review of Existing Agency 
Regulations.'' We also began considering methods for determining which 
regulations should be reviewed, strategies for engaging senior 
leadership, and how best to allocate resources for such a review.
    b. What specific rules, if any, were already under consideration 
for retrospective analysis?
    Prior to issuance of the Executive Order, and in establishing ED's 
regulatory priorities for 2011, we identified several specific 
regulations for retrospective review and determined that, based on that 
review, further amendments to these regulations are necessary. These 
regulations are as follows:
     The Federal Family Education Loan (FFEL) program 
regulations in 34 CFR part 682 and the William D. Ford Federal Direct 
Loan (Direct Loan) program regulations in 34 CFR part 685. In the SAFRA 
Act, Title II of the Health Care and Education Reconciliation Act of 
2010, Congress ended the making of new loans in the FFEL program, 
effective July 1, 2010. As a result, the Direct Loan program has 
expanded to be the single source of new Federal student loans. ED is 
evaluating to what extent some of the FFEL program regulations are no 
longer needed and what changes are needed within the Direct Loan 
program regulations to improve efficiency and modernize the operations 
of that program. ED has begun the negotiated rulemaking process for 
these regulations.
     Regulations in 34 CFR parts 607, 608, 609, 628, and 637, 
governing the institutional development programs authorized by Titles 
III and V of the HEA. These regulations govern existing discretionary 
grant programs for minority-serving institutions. The Higher Education 
Opportunity Act of 2008 and the SAFRA Act created several new programs 
for minority-serving institutions; these new programs, however, are not 
covered by the existing regulations. We need to review and amend the 
existing regulations in order to streamline them across the different 
programs, to the extent feasible, and to ensure that they cover the 
newly authorized programs. Through these amendments, we plan to 
simplify the application process, thereby reducing burden on potential 
applicants.
     ED's regulations governing its direct grant and State-
administered grant programs in 34 CFR parts 74 through 99, also known 
as the Education Department General Administrative Regulations (EDGAR). 
Over the last several years, we have identified provisions within these 
regulations that are obsolete or that require updating to take into 
account developments in technology and streamlined application 
submission processes, thereby reducing burden on our applicants and 
grantees. Additionally, in implementing several new grant programs 
under the American Recovery and Reinvestment Act of 2009 (ARRA), we 
have identified key provisions in EDGAR that require substantive 
changes to improve transparency and improve the efficiency of our 
grant-making functions.
     Regulations in 34 CFR part 99 regarding the Family 
Educational Rights and Privacy Act (FERPA). On April 8, 2011, ED issued 
a notice of proposed rulemaking to amend these regulations. These 
proposed amendments are necessary to ensure that ED's implementation of 
FERPA continues to protect the privacy of education records, as 
intended by Congress, while allowing for the effective use of data in 
statewide longitudinal data systems (SLDS) as envisioned in the America 
COMPETES Act and under the ARRA. Improved access to data contained 
within an SLDS will reduce burden on States and greatly facilitate 
States' efforts to evaluate education programs, to build upon what 
works and discard what does not, to increase accountability and 
transparency, and to contribute to a culture of innovation and 
continuous improvement in education.

V. Elements of Preliminary Plan/Compliance With E.O. 13563

    a. How does the agency plan to develop a strong, ongoing culture of 
retrospective analysis?
    This plan, once finalized, will establish ED's policy for 
conducting thorough and meaningful retrospective reviews and analyses 
of our regulations on an ongoing basis. This plan will be disseminated 
to all offices within ED, and all offices will participate in 
implementing the plan.
    ED has established a retrospective review team that is responsible 
for developing this plan and for coordinating the retrospective reviews 
going forward. This team will regularly report its progress in 
implementing the plan and conducting the retrospective reviews to 
Deputy Secretary Miller and other senior officials. As indicated below, 
ED intends to conduct its retrospective reviews biennially. Thus, 
retrospective reviews will become standard operating procedure in the 
agency.
    b. Prioritization. What factors and processes will the agency use 
in setting priorities?
    The factors ED will use in setting priorities for the retrospective 
review of its regulations are:
     Have regulated parties expressed confusion about the 
regulations or requested changes to the regulations?
     Can the regulations be understood and implemented without 
extensive legal interpretation, non-regulatory guidance, or technical 
assistance?
     Have regulated parties expressed concern about unwarranted 
regulatory burden? Do the regulations create an unnecessary 
administrative burden?
     What is the estimated timeline for reviewing and possibly 
amending the regulations? For instance, will ED need to conduct 
negotiated rulemaking to amend the regulations, and does ED need 
amended regulations in place by a certain date?
     Has Congress amended the authorizing statute such that 
prompt review of existing regulations is necessary?

[[Page 39348]]

     Does ED anticipate reauthorization of the authorizing 
statute in the near term such that prompt review of existing 
regulations would likely be disrupted or not lead to regulatory 
revisions that could be implemented before reauthorization?
     Are the regulations outmoded, unnecessary, or out of date? 
If so, are they impeding the proper administration of the relevant 
program?
     Are the current regulations sufficient to administer the 
applicable programs?
     Are the regulations necessary to conduct the grant program 
or can the program be implemented based entirely on the statutory 
provisions or through using appropriate provisions of EDGAR?
     Have issues with the regulations been identified in audits 
(Office of Inspector General (OIG), Government Accountability Office 
(GAO), Single Audits)? Are there repeat audit findings or conflicting 
views on what the regulations mean?
     Are the regulations essential for program effectiveness 
and financial integrity? For example, does ED or another oversight 
entity monitor compliance with the regulations?
    c. Initial list of candidate rules for review over the next two 
years:
    In addition to those regulations currently under review, we have 
preliminarily identified a number of other regulatory provisions that 
we believe warrant retrospective review. As indicated below, program 
offices will be asked to conduct a retrospective review of these and 
other regulatory provisions in the next several months. These are as 
follows:
     Regulations in 34 CFR part 300 under Part B of the 
Individuals with Disabilities Education Act (IDEA) and reporting 
requirements under Part B of IDEA. We have heard from a number of 
States about burden associated with some provisions of our current Part 
B, IDEA regulations and annual reporting requirements. We intend to 
conduct a thorough review of these regulations and requirements to 
assess their effectiveness and determine whether burden can be reduced, 
without diminishing the rights of students with disabilities.
     Regulations in 34 CFR part 350 relating to programs 
administered by the National Institute on Disability and Rehabilitation 
Research (NIDRR). In reviewing these regulations, ED seeks to identify 
regulatory changes that could improve the process for awarding grants 
and reduce the burden for eligible entities who apply for discretionary 
funds under the programs administered by NIDRR.
     Regulations in 34 CFR 388.21 for the State Vocational 
Rehabilitation Unit In-Service Training Program. The Department is 
concerned that the current formula may lead to inequitable or 
inefficient distribution of funding among eligible entities and is 
interested in identifying changes that might increase the effectiveness 
of this program.
     Regulations in 34 CFR parts 400 through 491 governing 
career and technical education programs. These regulations have not 
been updated since the most recent reauthorization in the Carl D. 
Perkins Career and Technical Education Improvement Act of 2006. We will 
consider whether regulations are needed to improve the administration 
and effectiveness of the program.
     Regulations in 34 CFR part 104 implementing section 504 of 
the Rehabilitation Act of 1973. These regulations, which are designed 
to eliminate discrimination on the basis of handicap in any program or 
activity receiving Federal financial assistance, have not been updated 
since 2000. We will consider whether changes are needed to improve the 
administration and implementation of the regulations.
     Regulations in 34 CFR parts 655, 656, 657, 658, 660, 661, 
662, 663, 664, and 669 governing the postsecondary international 
education programs. Following reauthorization of the HEA in 2008, ED 
made limited technical amendments to these regulations. However, a more 
comprehensive review of these regulations is necessary. Specifically, 
ED needs to review and amend these regulations to streamline them 
across the different programs to reduce burden on potential applicants, 
to the extent feasible, and to ensure that they provide the flexibility 
necessary to address emerging issues in international education.
     Regulations in 34 CFR parts 673, 674, 675, and 676 
governing the campus-based Federal Student Aid programs. ED has 
regulations governing these formula grant programs that require 
updating and streamlining. We will consider changes that are needed to 
improve the administration and efficiency of these programs, while 
reducing burden on regulated parties.
     Regulations governing discretionary grant programs for 
which the authorization has been repealed or for which Congress has not 
provided funding in some time. These include regulations for the 
Endowment Challenge Grant program in 34 CFR part 628, the Urban 
Community Service Program in 34 CFR part 636, the Christa McAuliffe 
Fellowship Program in 34 CFR part 237, and in the Bilingual Education: 
Graduation Fellowship Program 34 CFR part 535. We will repeal the 
regulations for the programs that are no longer authorized and consider 
whether the regulations for authorized but no longer funded programs 
are still necessary.
    d. Structure and Staffing. High-level agency official responsible 
for retrospective review.
    Name/Position Title: Tony Miller, Deputy Secretary.
    E-mail address: tony.miller@ed.gov.
    e. How does the agency plan to ensure that the agency's 
retrospective team and process maintain sufficient independence from 
the offices responsible for writing and implementing regulations?
    The retrospective review team will include representatives of the 
following offices: Office of the Deputy Secretary; Office of the Under 
Secretary; Office of Planning, Evaluation, and Policy Development; 
Budget Service; and the Office of the General Counsel. These offices do 
not have primary responsibility for drafting or implementing 
regulations. Additionally, the team will consult, as appropriate, with 
other offices that have agency-wide responsibilities, such as the 
Office of Inspector General.
    f. Describe agency actions, if any, to strengthen internal review 
expertise. This could include training staff, regrouping staff, hiring 
new staff, or other methods.
    The review team will be trained on the prioritization factors that 
ED has identified above and on our principles for regulating. The 
principles and the prioritization factors will be used as the key 
criteria in conducting the review.
    g. How will the agency plan for retrospective analysis over the 
next two years, and beyond?
    ED will be publishing the preliminary plan for public comment and, 
following the receipt of public comment, will revise the plan 
accordingly. At the same time, the retrospective review team will be 
asking program offices, budget analysts, and program attorneys to 
complete a retrospective review survey that requests information on 
existing regulations (see response to question VI(c) below). The team 
will coordinate the retrospective reviews and provide periodic reports 
to Deputy Secretary Miller and other senior officials on the progress 
and results of those reviews.
    Once these reviews have been completed, the retrospective review 
team will analyze the results and develop recommendations to senior 
officials about which regulations should be amended (or what other 
actions other

[[Page 39349]]

than regulation could be taken to reduce burden). Taking into account 
the prioritization factors listed above and agency resources, and 
working with senior officials, ED will develop a schedule for the 
amendment of those regulations identified for revision.
    While ED is conducting these reviews, it will analyze the public 
comments that it receives on the draft plan and incorporate any changes 
into the final plan. ED intends to conduct its retrospective reviews 
biennially.
    h. How will the agency decide what to do with the analysis?
    The retrospective review team will use the results of the analysis 
to develop recommendations for senior officials regarding whether 
regulations should be amended and whether alternatives to regulating, 
such as updating guidance or modifying reporting requirements, should 
instead be used to reduce burden, simplify program implementation, or 
improve understanding of the regulations.
    i. What are the agency's plans for revising rules? How will 
agencies periodically revisit rules (e.g., through sunset provisions, 
during regular intervals)?
    ED will revise regulations based on the results of the 
retrospective reviews, the recommendations of the retrospective review 
team, and the decisions of senior officials. As indicated above, ED 
intends to conduct its retrospective reviews biennially.
    j. Describe how the agency will coordinate with other Federal 
agencies that have jurisdiction or similar interests:
    ED will work through the Office of Information and Regulatory 
Affairs within the Office of Management and Budget and with its 
existing contacts at other agencies as it is conducting its 
retrospective reviews and any subsequent amendments to our regulations. 
These agencies include the U.S. Department of Justice, the U.S. 
Department of Labor, the U.S. Department of Health and Human Services, 
the Social Security Administration, and the U.S. Small Business 
Administration. With respect to our discretionary grant programs, we 
have consulted and will continue to consult with other Federal agencies 
engaged in similar activities to assess ways in which we can reduce 
overlap and redundancy and share best practices, including in such 
areas as pre-award risk assessments and audit reviews.
    k. Will the plan be peer reviewed?
    There has been a thorough internal review of the preliminary plan 
by all offices within ED and any revisions made as a result of the 
public comment we receive on the draft plan will undergo a similarly 
thorough review.
    If yes, please describe those plans:
    The preliminary plan has undergone several levels of Departmental 
review. We have actively engaged and sought input from ED's senior 
leaders in developing the plan. The plan was presented to ED's Policy 
Committee for input and recommendations by senior policy officials. 
Based on recommendations from the Policy Committee, changes were made 
to the plan, and further changes were made as a result of the review by 
a larger group of ED staff who are directly responsible for 
administering the programs that would be affected by any changes to the 
regulations. As necessary, meetings were held to answer questions and 
reconcile differences.
    ED will soon be publishing the preliminary plan for public comment 
and will seek informal feedback from stakeholders. Following receipt of 
public and stakeholder input, ED will consider further revisions to the 
plan. The final plan will undergo a similar internal review as the 
preliminary plan.

VI. Components of Retrospective Cost-Benefit Analysis

    a. What metrics will the agency use to evaluate regulations after 
they have been implemented? For example, will the agency use increases 
in net benefits, increases in cost effectiveness ratios, or something 
else?
    ED will use several metrics to evaluate regulations after they have 
been implemented. These metrics are as follows:
     Have there been numerous questions from stakeholders 
asking for further clarification of, or further amendment to, the 
regulations on points it would be feasible or desirable to address or 
clarify in the regulations?
     What, if any, guidance has ED provided to clarify the 
regulations following issuance of the regulations and has the guidance 
provided the clarification needed?
     What does information obtained from ED data collections, 
including data collected through evaluations, grantee performance 
reports, and other sources tell us about changes in net benefits, cost-
effectiveness ratios, or other financial metrics?
     With respect specifically to ED's regulations implementing 
Parts B and C of IDEA, ED already publishes a quarterly list of 
correspondence that it sends in response to requests from stakeholders. 
This correspondence provides guidance and interpretations of the IDEA 
and its implementing regulations. We will continue to monitor the 
substance of this correspondence and the number of inquiries received 
to assess whether regulatory changes may be necessary.
     Has implementation of the regulations led to unfair or 
unequal access to funding?
    b. What steps has the agency taken to ensure that it has the data 
available with which to conduct a robust retrospective analysis?
    The retrospective review team will develop a template for offices 
to use in collecting data on the metrics identified above. ED also is 
exploring using a customer survey on an ongoing basis to obtain 
feedback and data from the public on ED regulations.
    c. How, if at all, will the agency incorporate experimental designs 
into retrospective analyses?
    Although ED will not be incorporating experimental designs into its 
analyses, its retrospective analysis of a given set of regulations will 
begin with independent reviews from the following: (1) Program staff 
who are responsible for overseeing the implementation of the 
regulations; (2) the program attorney who advises the program staff on 
the legal aspects of administering the program; and (3) budget staff 
who are knowledgeable about the allowable uses of program funds. Each 
individual will independently complete a review survey that requests 
information on at least the following questions (which correspond to 
the prioritization factors described above):
     Have regulated parties identified a lack of clarity or 
need for changes in the regulations? If so, what regulatory provisions 
cause confusion or need change?
     Can the regulations be understood and implemented without 
extensive legal interpretation, non-regulatory guidance, or technical 
assistance?
     Have regulated parties expressed concern about unwarranted 
regulatory burden? Do the regulations create an unnecessary 
administrative burden? If so, what regulatory provisions might be 
unduly burdensome and why?
     What is the estimated timeline for reviewing and possibly 
amending the regulations? For instance, will ED need to conduct 
negotiated rulemaking to amend the regulations and does ED need amended 
regulations in place by a certain date?
     Has Congress amended the authorizing statute such that 
prompt review of existing regulations is necessary?
     Does ED anticipate reauthorization of the authorizing 
statute in the near

[[Page 39350]]

term? If yes, how will reauthorization affect existing regulations?
     Are the regulations outmoded, unnecessary, or out of date? 
If so, are they impeding the proper administration of the relevant 
program? Please identify specific regulatory provisions that are 
obsolete or out of date and provide a brief explanation.
     What does the evidence from program evaluations, including 
those that use experimental designs, reveal about the efficacy of the 
regulations and the need for changes?
     Are the current regulations sufficient to administer the 
applicable programs? If not, what specific changes would you recommend 
to update the existing regulations?
     Are regulations necessary to conduct the grant program or 
can the program be implemented based on the statutory provisions? If 
regulations are necessary, what specific areas need to be covered in 
the regulations?
     Have issues with the regulations been identified in audits 
(OIG, GAO, Single Audits)? Are there repeat audit findings or 
conflicting views on what the regulations mean?
     Are the regulations essential for program effectiveness 
and financial integrity? For example, does ED or any other oversight 
entity monitor compliance with the regulations?
     What are the costs and benefits of removing a regulatory 
requirement, and what would be the effect on students and program 
accountability?

VII. Publishing the Agency's Plan Online

    a. Will the agency publish its retrospective review plan and 
available data on its Open Government Web site (http://www.agency.gov/open). If yes, please provide the name of a technical staff person who 
will be charged with updating the plans online.
    ED will publish its plan on its Open Government website (http://www.ed.gov/open). As indicated above, ED intends to solicit public 
comment on its plan as well. The technical person who will be charged 
with updating the plan online is Kirk Winters, who can be reached at 
kirk.winters@ed.gov.

[FR Doc. 2011-16901 Filed 7-5-11; 8:45 am]
BILLING CODE 4000-01-P
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